Bolaski case inches toward new trial as attorneys continue to spar over admissible evidence

A judge on Wednesday asked lawyers in a long-running second-degree murder case to hone their arguments on which evidence, including medical records related to the victim, they think should be admissible at a Windsor County man’s pending trial.

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Bolaski Case Inches Toward New Trial as Attorneys Continue to Spar Over Admissible Evidence Defense attorney Brian Marsicovetere, right, questions Dr. George Behonick, a toxicologist, on the stand during the second day of Kyle Bolaski's motion hearing to admit evidence at his new trial about the victim's mental health on Wednesday, June 28, 2017, in White River Junction, Vt. (Valley News - Jovelle Tamayo) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com. Purchase a reprint » Kyle Bolaski listens to testimony from a toxicologist on the second day of a motion hearing to admit evidence at his new trial about the shooting victim's mental health on Wednesday, June 28, 2017, in White River Junction, Vt. (Valley News - Jovelle Tamayo) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com. Purchase a reprint » By Jordan Cuddemi Valley News Staff Writer Thursday, June 29, 2017 Print HARTFORD VT White River Junction — A judge on Wednesday asked lawyers in a long-running second-degree murder case to hone their arguments on which evidence, including medical records related to the victim, they think should be admissible at a Windsor County man’s pending trial. The comment came at the end of a two-part hearing on a state-filed motion to keep information on the victim’s mental health history out of Kyle Bolaski’s second trial, a date for which hasn’t been set. At a jury trial in 2011, Bolaski, now 33, was convicted of second-degree murder in the 2008 death of Vincent Tamburello Jr., but the Vermont Supreme Court reversed the decision in 2014, in part because the trial judge, Patricia Zimmerman, prematurely excluded evidence about Tamburello’s mental health in the run-up to the Aug. 17 shooting at a Chester, Vt., athletic field. On Wednesday, Judge Theresa DiMauro told Franklin County prosecutor John Lavoie and defense attorney Brian Marsicovetere they have until July 14 to provide her with filings on what records they seek to admit or exclude at trial and on what basis. Tamburello’s mental health has been at the center of the nearly 9-year-old case; Tamburello either sought medical care or was hospitalized several times before the incident. “I’ll leave it up to you two to be specific ... and we will proceed from there,” DiMauro told the attorneys. “There will be no extensions.” Before the end of the hearing, Lavoie asked DiMauro, who will retire by the end of the year, a question. “Would you be willing to stay with this case?” he asked. “I have plans,” she said with a smile, adding that she will write a “very clear” transcript for the next judge to read ahead of trial. DiMauro was one of the first judges to hear Bolaski’s case back in 2008 and is one of at least five judges to preside over the case. Bolaski, a Springfield, Vt., resident, claims he acted in self-defense that August day when he fired two shots at Tamburello, who pursued him with a splitting maul. The prosecution, however, believes the facts of the case tell a different story and paint Bolaski as the aggressor. According to the Supreme Court ruling, a toxicology report revealed Tamburello had an assortment of drugs in his system at the time of the incident, including Xanax; or alprazolam; methadone; THC and cannabinoids, among others. A state expert, toxicologist George Behonick, took the stand on Wednesday morning to complete the testimony that he started on day one of the hearing in December. His testimony mostly centered on the concentration of the anti-anxiety medication alprazolam in Tamburello’s system before and after the shooting, and the type of sample that was taken from Tamburello — serum or blood — to get the readings. Behonick in December cast doubt on a defense-hired expert’s calculation of how much over the therapeutic dose of alprazolam Tamburello had ingested, which the defense has claimed was significant and impacted Tamburello’s decision making and caused him to act aggressively. That expert, Dr. Scott Lukas, a psychopharmacologist who opined Tamburello was in a “drug-induced psychosis” at the time of the incident, retook the stand on Wednesday. Lukas said Tamburello also could have been experiencing a “paradoxical,” or opposite, reaction to the drug, which is intended to calm someone down. If so, he said, a normal dosage could cause adverse reactions. The two doctors disagreed on the type of sample that was taken from Tamburello, and said the concentration of the drug in his system could differ depending on the sample type. The doctors also went back and forth on whether concentration levels can differ from pre- and post-mortem samples and at what rates, and discussed what factors could impact the level of a drug in a person’s system. Since the last hearing, Marsicovetere said, he learned “all of the raw data” tied to the sample taken from Tamburello has been destroyed, per protocol at the lab where Behonick works. It wasn’t clear on Wednesday when DiMauro will issue her ruling. Jordan Cuddemi can be reached at jcuddemi@vnews.com or 603-727-3248.